Citation Nr: 1336835 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-02 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right lobe disorder, to include a pulmonary disorder and collapsed lung. REPRESENTATION Appellant represented by: David L. Huffman, Attorney ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Subsequently, the Board remanded this matter in a June 2011 remand. While the Board previously viewed this appeal as to whether new and material evidence had been received to reopen a claim of service connection for a right lobe condition, to include a pulmonary condition and collapsed lung, further review discloses there has never been a prior final decision regarding this claim. The RO issued rating decisions regarding the Veteran's lung claim in June 2006, January 2008 and in October 2008. However, new and material evidence was submitted within 12 months of the June 2006 rating decision and the RO agreed to reconsider its January 2008 rating decision within 12 months of that decision. Therefore, neither the June 2006 nor January 2008 rating decisions can be considered final decisions. Thus, the Veteran's claim can be adjudicated as one for direct service connection without the need of proving new and material evidence has been received to reopen the claim. See 38 C.F.R. § 3.156(b) (2012) (new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period). The Board also notes that the Veteran's former representative has filed a formal motion to withdraw from the appeal as the Veteran is now represented by an attorney. That motion is granted. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant, if further action is required on his part. REMAND Unfortunately, a remand of the Veteran's service connection claim for a lung disorder is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). After the RO issued a Supplemental Statement of the Case (SSOC) in September 2011, the Veteran's attorney submitted a statement received in December 2011. In it, the attorney stated that he was submitting 54 pages of VA medical records dated from January 18, 2011 to November 4, 2011. These records are not found anywhere in the three volumes of the claims file nor have they been associated with the Veteran's Virtual VA eFolder. Further, the attorney's purported submission did not include a waiver of initial RO consideration of this new evidence. See 38 C.F.R. § 20.1304(c) (2012). The attorney's correspondence also noted his understanding that VA would electronically obtain the records, but if it was unable to do so his office should be notified so he could send the records to VA. There is no indication in the claims file that VA ever responded to this request or subsequently issued another SSOC concerning this additional evidence, probably because the claims file had already been sent to the Board. See 38 C.F.R. § 19.31 (2012) (noting that the agency of original jurisdiction will furnish a SSOC when it receives additional pertinent evidence after the most recent SSOC has been issued and before the record is transferred to the Board). As the Veteran's claim for service connection for a lung disorder is the only issue on appeal, the Board must assume these missing VA records relate to the issue on appeal and must be obtained before final adjudication. Therefore, on remand the RO must associate with the claims file all VA medical records from January 2011 to November 2011 not found therein and update the file with any more recent records. VA has a duty to obtain all relevant VA and governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). Further, the Board observes that the examiner who conducted both the February 2006 and April 2008 VA examinations noted that while the Veteran had a spontaneous pneumothorax in service, such had resolved. She failed to list any current diagnosis of any lung disorder, except for atelectasis in the right lung according to the chest X-ray in April 2008. Another reviewer appeared to concede a current pulmonary condition in her May 2006 addendum. However, private medical personnel have diagnosed asthma, COPD, and a paralyzed right hemidiaphragm. Dr. J.W. and J.R., a physician's assistant, stated in April 2007 private correspondence that the Veteran's lung condition began with his pneumothorax in service, which they said was not treated correctly, and that the elevation of his right diaphragm started and exacerbated the process. Unfortunately, Dr. J.W. and J.R. failed to diagnose a current respiratory disorder or process in their April 2007 letter. Therefore, even with the two VA examinations and the April 2007 private nexus opinion, the lay reviewer is left in some confusion whether the Veteran is currently diagnosed with a lung or respiratory disorder. For example, a March 2003 private medical record noted a diagnosis of chronic obstructive pulmonary disease (COPD). March 2005 private hospital records related to the Veteran's seizure at work and subsequent treatment noted a diagnosis of asthma and a history of bronchial asthma and a subsequent discharge diagnosis of acute pulmonary embolism. A May 2005 private medical record reviewed the Veteran's respiratory history and diagnosed chronic exertional dyspnea, recent pulmonary embolism, and hypercoagulation. The examining physician, Dr. E.O., opined that the Veteran's decreased breathing sounds on the right side were from chronic basal atelectasis and probable superimposed hyperactive airway disease. A May 2005 CT scan showed a chronic elevation of the right hemidiaphragm with dense atelectasis in the posterior right lung base with some calcified pleural plaquing. July 2005 correspondence from Dr. G.B.T., a professor of medicine and chief of the pulmonary division at a private hospital, related that the Veteran was seen for a consultation. On examination, the Veteran denied exertional chest pain or shortness of breath. There were markedly decreased to nearly absent breath sounds on the right. His right hemidiaphragm was elevated to percussion. No diaphragmatic movement was detected on percussion. Dr. G.B.T. noted an abnormal chest X-ray and CT scan. The X-ray study showed a right hemidiaphragmatic elevation, which the physician said was the result of diaphragmatic paralysis, and a paucity of vascularity on the right side. The physician noted that the possibility of a Westermark sign existed. A sniff test revealed no diaphragmatic movement. This diaphragmatic paralysis was noted unchanged over a one-year period of time and was believed to be chronic and of unknown etiology. Dr. G.B.T. also diagnosed a pulmonary embolus. He noted that the Veteran claimed a genetic abnormality which would lead to abnormal coagulability. Dr. G.B.T. noted that the possibility existed that a residual clot had persisted in the right pulmonary artery causing the paucity of vascular abnormalities or alternatively that a second clot had occurred since March 2005 leading to this paucity. Alternatively, a hyperplastic pulmonary artery could explain paucity of vasculature. The physician also supposed that it could be related to the lack of perfusion in the right lung due to the right hemidiaphragmatic paralysis. In August 2005, a private consultant noted no residual pulmonary deficits, but noted that the stroke suffered at work was apparently induced by an embolism. Two or three clots on the left lung were noted. In a March 2006 statement, a private speech therapist noted that the Veteran continued to have difficulty breathing secondary to a lung condition. In an August 2006 letter, the Veteran's son noted that the Veteran had recently been diagnosed with COPD and that there was evidence the Veteran's paralyzed right diaphragm was related to the chest tube used in service for his collapsed lung. An October 2006 decision by an administrative law judge determined that the Veteran was eligible for Social Security Administration (SSA) disability benefits due, in part, to a pulmonary embolism. The VA examiner did not specifically address any conflict between her examination reports and medical opinions and the private evidence of record. However, a different examiner, a VA nurse practitioner, noted in a May 2006 addendum that reactive airway disease was not documented prior to active duty and exertional dyspnea and pulmonary embolism were not documented on active duty. If the Board relied on the VA medical opinions, the Veteran's claim essentially could be denied because he had no current diagnosed lung disability. Or the claim could be denied because current respiratory symptoms were not seen in service. The Board notes that while service connection requires the presence of a current disability, that requirement is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed, or during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the final adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the private medical evidence noted above suggests that the Veteran had a current lung or respiratory disorder, such as COPD or asthma or a paralyzed right hemidiaphragm, after he filed his claim for service connection in September 2005. The Board finds that the February 2006 and April 2008 VA examinations are inadequate and that the Veteran is entitled to an adequate and thorough VA examination and medical opinion. Service treatment records show treatment for a collapsed lung in service. Post-service medical evidence shows various lung or respiratory disorders in recent years. The April 2007 private correspondence even found that the Veteran's pneumothorax in service contributed in some way to recent or current lung conditions. Thus, there are sufficient reasons to warrant a thorough VA examination and medical opinion in this case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, on remand the RO shall schedule the Veteran for a respiratory examination to determine whether he has, or recently had, any respiratory or lung disorder that more likely than not is related to his period of active military service. Accordingly, the case is REMANDED for the following action: 1. The RO shall contact the Veteran and his attorney and ask them to specify all VA and private medical care providers who have treated him for his claimed lung and respiratory disorders. The RO shall then attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file, in particular any records of treatment or evaluation from the Saginaw, Michigan VAMC during the period from January 2011 to November 2011 and to the present. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his attorney are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After any missing VA treatment records have been associated with the claims file, the RO shall schedule the Veteran for a VA respiratory examination, with an examiner other than the examiner who conducted the February 2006 and April 2008 VA examinations, to determine the nature and likely etiology of any current lung or respiratory disorder the examiner believes was present in September 2005 at the time the Veteran filed his claim. The entire claims file, including a copy of this Remand, must be made available to the examiner for review. All tests deemed necessary by the examiner should be undertaken, including a chest X-ray and pulmonary function test, if necessary to confirm a diagnosis. Based on the examination and record review, the examiner should provide an opinion as to the following: (a) whether the Veteran currently suffers from (or was suffering from in September 2005 at the time he filed his claim) the residuals of any lung or respiratory disorder; and (b) If so, whether such diagnosed disorder is at least as likely as not (a 50 percent probability or greater) related to any event or incident during service from October 1972 to October 1974. The VA examiner is requested to comment on how his or her findings and opinions differ from the findings and opinions of Dr. J.W. and J.R., a physician's assistant, in their April 2007 private correspondence; the July 2005 correspondence from Dr. G.B.T.; and the May 2005 private medical record of Dr. E.O. The VA examiner is requested to attempt to reconcile any conflicts in the medical evidence. If the requested opinions cannot be provided without resorting to speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation. 3. After all development has been completed, the RO shall adjudicate the Veteran's claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his attorney shall be provided with a Supplemental Statement of the Case and allowed appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).